The incorporation of the substantive provisions of the UN ECC in Vietnam s domestic law and evaluating the possibility of Vietnam acceding ECC

Transcription

1 The incorporation of the substantive provisions of the UN ECC in Vietnam s domestic law and evaluating the possibility of Vietnam acceding ECC Nguyen Dieu Huong Vietnam E-Commerce and Information Technology Agency Ministry of Industry and Trade

2 Contents 1. The compatibility between Vietnam law and ECC 2. Evaluating the possibility of Vietnam acceding ECC - The use of e-contract - Benefit of adopting ECC ( enterprises; opinions of experts) - Advantages and Disadvantages - Domestic procedures to accede ECC

3 The compatibility between Vietnam law and ECC

4 E-commerce legal framework

5 The compatible between local law and ECC Law Electronic Transaction Law UNCITRAL Model Law on Electronic Commerce Decree on Electronic Signatures and Electronic Signatures Certification Service UNCITRAL Model Law on Electronic Signatures Bylaws Decree on Electronic Commerce United Nations Convention on the Use of Electronic Communications in International Contract

6 Fully incorporated provisions

7 The compatible between local law and ECC (cont.) Comparing Vietnam law on e-contract with ECC Electronic Transaction Law: the difference Time of dispatch Decree on Electronic Commerce: the difference Original form of e-communications Invitations to make offers -> They are not different in essence but in the way of expression -> The high compatibility between Vietnam law and ECC

8 Time of dispatch and receipt Law on E-Transaction Basing on MLEC (15) Data Message enters a system outside (17.1) Receipt when addressee have actual retrieval (18.2) Decree on E-commerce Basing on ECC (10.1,2) E-Communication leaves a system (10.1) Receipt when capable to retrieved & recipient is aware (10.2)

9 E-Signatures E-Communications Convention Art 9(3) Law on E-Transaction Art 24(1) Identify the party Identify the party Indicate party s intention Indicate party s approval

10 Evaluating the possibility of Vietnam acceding ECC

11 The use of electronic means to enter in and implement contracts The electronic tools that enterprises use to receive order and order 78% 76% 36% 40% Website 70% The number of online order received in 2014 The average value of orders in % 19% 4% 7% 23% 13% 21% Under Above 2000 Under 50$ $ $ Above 250$

12 The use of e-contract in Vietnam Import-Export Enterprises The method of signing contract with foreign partner Meeting for negotiating and signing contracts Negotiating contract via and sending contract through postoffice/fax for signature and stamp 79.7% 85.1% The percentage of signing contract methods/ total value of transactions 49.7% 41.1% Negotiating contract and sending through (without signature/ stamp) 43.2% Entering into contracts via websites of enterprises or of counterparts 25.7% 9.2% Entering into contracts via e- marketplaces 28.4% Traditional paper contract Combining traditional and electronic method Online contract

13 The status of using e-contract in Vietnam Import-Export Enterprises (cont.) The status of e-contract disputes Have Don t have 59% 41% Obstacles of handling disputes Regulations on e-contracts not clear 48.1% Law applying to handle disputes Difficulties on determining law for disputes 37.0% 58.3% Difficulties on figure out the business locations Difficulties on figure out the time of dispatch and receipt of e-contracts Others 11.1% 22.2% 18.5% 33.3% International/ Regional Treaties 12.5% The third country Law Counterpart's country law 16.7% Vietnam Law

14 Benefit of adopting ECC for enterprises Reducing cost and time of negotiation for law that applied for contract. Being the base to handle dispute in international transaction, helping Vietnam to reduce the level of using counterpart s law. The number of disputes in VIAC by year The percentage of disputes on applied law for Import- Export Contract / Total disputes in VIAC Disputes on applied law Other disputes If Vietnam accede ECC, Vietnam enterprises will be protected by this Convention when trading and contracting with counterparts that their countries are contracting states of ECC (including Singapore and Russia); and will be equal with counterparts when choosing law to handle disputes.

15 Benefit of adopting ECC for enterprises (cont.) The percentage of disputes of each country / Total disputes on international contracts in VIAC Japan Russia Malaysia Germany UK US China Korea Singapore Contracting State Signature Signature Contracting State 0% 2% 4% 6% 8% 10% 12%

16 Survey on the readiness of human resource for the accession of ECC Objects: experts on academic, research, business and lawyer community that relating to e-commerce Survey Result: 4 questions relating to ECC (content of ECC, disputes, comparing with legal documents of Vietnam, should accede or not?) Poorly understand on the content of ECC Better content than Vietnam s Should accede ECC

17 Advantages and Disadvantages Advantages Domestic legal system based on UNCITRAL texts (Decree on E-Commerce) Fostering the local research, supplement, and amendment activities on e-commerce law Disadvantages Differences between international and domestic contract law Human resources to adopt and implement ECC Dispute dealing experiences Revolution of technology -> arising problems (i.e. cloud computing)

18 Accession Procedure As regulated by UNCITRAL The recommen ding agency research on the ability of Vietnam acceding Treaty The recommendin g agency obtain opinion of Ministry of Foreign Affair (Art.10), Ministry of Justice (Art ), other concerned agencies and organizations The recommend ation agency submits the recommend ation to the Government The Government obtains opinion of National Assembly (NA), National Assembly Standing Committee (NASC) about the accession to multilateral Treaty that having provisions against or have not been regulated in legal documents of NA, NASC ; or international Treaty that in order to implement, needed to adjust, supplement, repeal or promulgate legal documents of NA, NASC The Government proposes the State President to decide the accession (International Treaty, on behalf of State; multilateral treaty requires the accession, excluding the condition that the State President proposes NA to decide) The Government promulgates an Decision of acceding Treaty The State President decides the accession The State President requires NA, NASC to accede Treaty NA decides acceding the multilateral treaty in the meeting of NA Vietnam submits the Instrument of Accession to UN Secretary- General. Treaty will take into force with Vietnam 1 month after the day submitting the Instrument.

19 Timing of the adoption Current phase: - CISG: Step 3 -> MOIT submited to Government - ECC: Step 1 -> MOIT researched and held workshops to collect opinions of researchers & enterprises Adopt ECC Adopt CISG

20 Vietnam E-Commerce and Information Technology Agency Ministry of Industry and Trade